IIFET 2000 Proceedings

New Zealand Maori Claims to Fisheries Resources

Randall Bess, School of Business, Nelson Polytechnic Te Whare Wananga o Te Tau Ihu, Private Bag 19, Nelson, New Zealand, [email protected]

Abstract. New Zealand’s fisheries are perhaps best known for the individual transferable quota (ITQ) system brought about by the Fisheries Amendment Act 1986. There is general recognition that the ITQ system has improved the biological status of fisheries resources and commercial returns. The 1986 Act allocated quota to fishing firms and individuals that met the allocation criteria. Part-time fishers, many of whom were Maori, New Zealand’s indigenous people, were excluded from the initial allocation. The 1986 Act did not address claims by Maori of having indigenous rights guaranteed by the Treaty of Waitangi 1840. The English-language version of the Treaty of 1840 is recognised by the Crown as the founding document of New Zealand as a nation. Maori widely accept another version in Maori language, Te Tiriti o Waitangi. A key term in the Maori-language version is kawanatanga, the right of iwi (large kinship group) to self-government in their particular region. Kawanatanga was offered by Maori in return for the Crown providing several guarantees, one of which was Maori rights to fisheries resources. Since the Treaty, Maori have protested against government actions and legislation that have eroded their rights guaranteed by the Treaty. The implementation of the 1986 Act prompted further Treaty-based claims to large areas of fisheries, and the ITQ system was used to settle several claims. This paper explores Maori views on resource use and claims to fisheries resources, legislative changes enacted to settle Maori fisheries claims, and claims that remain outstanding. The insights of this paper have relevance to the broader discussion on indigenous perspectives.

Key words: Indigenous peoples, Indigenous rights, New Zealand, Individual transferable quota.

1. INTRODUCTION This paper explores Maori claims to fisheries resources, To fully understand New Zealand’s individual legislative changes enacted to settle those claims and transferable quota (ITQ) system, it is imperative to claims that remain outstanding. In so doing, this paper comprehend the growing presence that Maori, New explores Maori views on resource use which require Zealand’s indigenous people, have in the fishing industry. consideration of Maori history, their social system and Beginning in the late 1980s, Maori have received vast traditions, including fisheries management practices. It is transfers of quota holdings and other assets that ensure important to place Maori fisheries claims in this broader they will have a continued and growing presence in the context for two reasons: first, to better understand why industry. The assets transferred to Maori are the result of Maori call themselves tangata whenua (people of the settlements to their claim that the Crown breached the land) and what significance this has to their resource Treaty of Waitangi 1840, considered the founding claims; second, to counter the longstanding misconception document of New Zealand as a nation. The Treaty of 1840 that Maori historically had limited involvement with the explicitly states that Maori have rights to their natural and sea. This misconception conveniently accommodated the cultural resources. early Anglo-Commonwealth settlers’ encroachment onto Maori traditional coastal and off-shore fishing grounds. However, government actions and legislation subsequent This misconception has continued to influence most of to the Treaty of 1840 have eroded Maori Treaty-based New Zealand’s fisheries legislation. rights. Maori have continued to object to the erosion of their rights, bringing numerous legal claims against the This paper begins with a section titled Indigenous Crown which have mostly been, until recently, Peoples’ Rights, which is discussed in the context of unsuccessful. The implementation of the Fisheries colonisation. The following sections are Maori Early Amendment Act 1986, which introduced the ITQ system, History and Traditions, Early Colonial History, Fisheries prompted further Treaty-based claims to large areas of Management Legislation, Maori Fisheries Claims and fisheries. Many Maori objected to the ITQ system as it Settlements, and Conclusions and Recommendations. The was seen to force their severance from the ocean, raid author, being non-Maori, acknowledges the inherent their sea resources and sell their right to participate in difficulty of speaking about issues of importance to Maori fisheries while others were allowed access to their and presents this paper with respect and good faith. At the traditional fishing grounds. Some Maori have questioned same time, being of Native American descent, the author why the ITQ system and its bureaucracy have replaced can appreciate some issues of importance common to some of their traditions, conservation practices and their indigenous groups. extensive knowledge of the sea (Wai-22, 1988). IIFET 2000 Proceedings 2. INDIGENOUS PEOPLES’ RIGHTS management practices based on institutional decision- making arrangements and cultural factors that had It is important to place Maori claims to fisheries resources sustainably managed common resources for centuries within the wider arena of indigenous peoples’ rights, since (Pálsson, 1999). indigenous peoples worldwide now seek the survival of their cultures and control of their own destinies (Coates, To date, the new migrant nations have taken significant 1998). ‘Indigenous’ or ‘aboriginal’ peoples are generally steps to recognise the losses that their indigenous peoples defined as ‘the living descendants of preinvasion have endured and to address their outstanding claims inhabitants of lands now dominated by others’ (Anaya, through political, legal and social channels. While some 1996:3). During the last few decades, indigenous peoples nations can be described as having decolonised their have increased their political strength to (1) gain external relations, colonisation continues through recognition of their cultures and heritage, (2) address the structural inequities between indigenous peoples and their effects of having been economically dispossessed and nations’ dominant cultures (Fleras and Spoonly, 1999). disenfranchised from their traditions, languages and Since the early 1980s, however, there has been a resources, and (3) reclaim what they have lost. This remarkable upswelling in international activity concerning section briefly outlines indigenous peoples’ efforts on the the position of indigenous peoples (Kingsbury, 1989). above three points.

In the eighteenth and nineteenth centuries, British and 2.1 UN Draft Declaration on the Rights of European nations increased their efforts to establish Indigenous Peoples colonial settlements in what had become new migrant nations, including the United States, Canada, Australia The primary means to collective expression of indigenous and New Zealand. At the time that new migrant nations peoples’ rights has been the United Nations (UN). In 1982 were first settled by colonising nations, a doctrine in the UN Commission on Human Rights established a international law stated that a change of sovereignty on working group on Indigenous Populations. This working cession between colonists and indigenous peoples did not group was established to facilitate dialogue between affect the property rights of the indigenous peoples governments and their indigenous peoples to review (Kingsbury, 1989). Indigenous peoples, therefore, had developments in the protection of their human rights and rights to retain possession of their lands and to full fundamental freedoms and to develop international sovereignty, and these rights could not be extinguished. standards on their rights. In 1993 the working group Contrary to this doctrine, the practice of colonisation developed a Draft Declaration on the Rights of Indigenous legitimised the pacification of indigenous peoples by a Peoples, which consists of guidelines and principles based combination of genocide, wars and low-intensity armed on established international human rights doctrines. conflict, mass population transfers, treaties ceding land while proclaiming friendship, paternalistic segregation, The Draft Declaration’s third article has attracted the most ethnocidal assimilation, and talk of post-assimilation self- controversy by stating ‘indigenous peoples have the right government (Havemann, 1999). New Zealand’s colonial to self-determination’. As would be expected, many UN history mirrors the experience of other new migrant member nations, including New Zealand, have voiced nations. their concerns about the inclusion of the self- determination concept in the Draft Declaration without it The effects of colonisation remain and impede being explained or qualified. Their main concern is that indigenous peoples’ efforts to reaffirm their culture and self-determination could threaten the preservation of their heritage. The cause of these impediments are often existing territories. Although the Draft Declaration does nations’ institutional and ideological intolerances towards not exclude secession by indigenous peoples, the thrust of indigenous peoples and their social systems (Quentin- the Draft Declaration is that indigenous peoples will Baxter, 1998). One example is the common law principle remain full members of their nations’ societies (Quentin- underpinning the ‘tragedy of the commons’ which is often Baxter, 1998), provided they are entitled to full and equal used to support the application of property rights in the participation in the creation of government institutions, management of natural resources. Colonial societies in the making them perpetually in control of their own destinies new migrant nations attempted to avoid the social (Anaya, 1996). dilemmas outlined in the ‘tragedy’ by transplanting their preponderance towards state or private property rights to It is expected that the adoption of the Draft Declaration the new colonies, while giving little or no consideration will provide considerable moral force for member nations to the suitability of common property rights or indigenous to use it as a legal benchmark for government policies. peoples’ resource management practices. This Various UN instruments, along with the International transplantation occurred despite many indigenous Decade for the World’s Indigenous Peoples 1995-2004, societies throughout the world, including those of New help raise awareness of changes needed in addressing Zealand, providing numerous examples of resource indigenous peoples’ rights.

2 IIFET 2000 Proceedings 3. MAORI EARLY HISTORY AND TRADITIONS the earth mother. Tane is attributed with having fathered the trees and birds before making the first woman from New Zealand was the last habitable region of the world to the soil of Hawaiki, thus making all humans belong to the be settled by humans (Orbell, 1995). Most archeologists’ land. These creation legends show how spiritual agents estimates place the first human arrivals in New Zealand and the transcendental forces of mana (authority, power, between 800 AD and 1100 AD, with it being unlikely that prestige) pervade the Maori cosmos and personal there were significant new arrivals after 1200 AD. interactions (Fleras and Spoonley, 1999). However, more recent analysis shows that humans may have first arrived around 2000 years ago, then left or died Maori kinship-based society is hierarchically structured. out, and resettled in greater numbers at around 1400 AD Whanau (extended family) is led by the kaumatua (male (Holdaway and Jacomb, 2000). elder) and the kuia (female elder). A collection of whanau make up a hapu, which is led by the rangatira (chief). A Maori commonly refer to an original homeland, Hawaiki, grouping of related hapu make up an iwi led by the ariki and their ancestors sailing in either single or double waka (paramount chief) (Walker, 1999). The concept of iwi, (large dugout canoes) to the new land they called however, did not eventuate until the late nineteenth and Aotearoa, the land of the long white cloud. (Brailsford, early twentieth centuries (Orbell, 1995) when related hapu 1989; Halbert, 1999). It has been speculated that some formed iwi in response to warfare and population later arrivals came to this new land after fleeing increases at that time (Walker, 1999). Prior to then, the unfavourable conditions in their home lands. The later hapu was responsible for landholdings, with each aspiring arrivals either intermarried with the earlier inhabitants, or to claim a stretch of coastline, land for horticulture and conquered them to produce new social formations interior forests for hunting and as sources of timber. (Walker, 1996). The various arrivals to Aotearoa over Inland hapu sought to control the land around lakes and centuries, if not millenia, help explain differences among along riverbanks. Maori in dialect and interpretation of traditions and the difficulties encountered when applying a pan-Maori The fabled waka traditions differentiate hapu and iwi from perspective. one another by their identification with revered waka ancestors or their descendants (Walker, 1996). Even those Like other indigenous peoples throughout the world, who trace their whakapapa to having always lived in Maori have a sense of ‘rootedness’ in the land and sea Aotearoa acknowledge ancestors whose origin was which provides them with a way of seeing the natural Hawaiki (Orbell, 1995). Whakapapa is the determinant of world in its entirety and their inter-relatedness with the all mana rights to land, membership in a whanau, hapu environment (Ririnui and Memon, 1997). Since Maori and iwi, kinship roles and responsibilities to other kin, and consider everything in the world to be alive and related, one’s place and status within society (Mahuika, 1998). they make no distinction between nature and human society. The natural world and human society are inseparable and have been since the beginning of time. 3.1 Maori Traditional Fisheries Management Humans and all other life forms are indissoluably tied together through kinship (Orbell, 1995). Everything in the Maori involvement with fishing embraces a spiritual natural world is viewed as possessing its own mauri (life dimension common among Polynesian peoples. Fishing is force), which is not be to be altered to any great extent. included in the Maui account of the creation of Aotearoa. Maori tikanga (customary values and practices) were The South Island was Maui’s canoe from which he developed to ensure that resource use did not disturb its hooked a fish which when brought to the surface became mauri. Humans possess mauri-ora (higher order of the North Island. Other examples include Tangaroa as the mauri), which bestows on humans kaitiakitanga god and father of fish. Since fish belong to Tangaroa and (responsibility towards other living things). Kaitiakitanga they are his children, people are allowed to take them encompasses rules, beliefs and ethical obligations humans when they show respect for Tangaroa and his sea-home. have to protect the integrity of resources for future Io (creator of all) nurtures Tangaroa’s children in generations (Ririnui and Memon, 1997). nurseries within bays, rock pools, estuaries and the blue waters. The harvesting of the waters honoured the Maori depict gods as the source of all knowledge, and precious gift of life (Brailsford, 1989). Punga is ancestors carry knowledge through their whakapapa considered the father of the shark, whales and other (genealogy), and transmit it to human descendants. The marine mammals, and Ru is the father of lakes and rivers whakapapa begins with the Maori account of creation, the (Wai-22, 1988). The much-treasured pounamu union of Ranginui and Papatuanuku. These first parents (greenstone) is considered to have been originally a fish have a number of children, with Tane as the son who that had swum from the original homeland, Hawaiki brings the world into existence by separating his parents. (Orbell, 1995). This spiritual dimension to fishing This separation thrusts Ranginui into the realms of space empowers Maori with mana atua (prestige and power of and time to become the sky, and Papatuanuku becomes the gods) (Ririnui and Memon, 1997).

3 IIFET 2000 Proceedings The linking of fisheries management to the spiritual realm fishing rights with limits to areas marked by stakes driven and the hapu’s communally-based structure helped ensure into the water. Several rows of stakes defined areas that fisheries were managed sustainably. Tikanga belonging to the different hapu, and trespassing instantly (customary values and practices) and kaitiaki attracted retribution (Wai-22, 1988). (guardianship of resources) maintained the long-term preservation of ecosystems and fish stocks by regulating These historical accounts and many others demonstrate access and use. In most cases, the property rights to that Maori utilised their fisheries resources and conducted fisheries resided in those with mana moana (sovereignty trade amongst themselves and with settlers. By the 1820’s over freshwater and sea holdings), which was usually the Maori were substantially involved in providing European hapu occupying adjacent land. Their territorial boundaries ships and coastal whaling stations with provisions. By the extended to inland water ways and out to sea. Because of 1830s, ships were carrying large quantities of Maori fisheries’ links with the gods, and the strong reliance hapu produce to Sydney, which continued well after the signing had on fisheries as a food source, they were considered of the Treaty of 1840 (Wai-22, 1988). taonga (treasure or a prized possession). The fisheries of each hapu had clearly defined areas with known access rights, and the knowledge of their tauranga ika (fishing 4. EARLY COLONIAL HISTORY grounds) was closely guarded and handed down through the generations (Ririnui and Memon, 1997). The anarchic colonial settlement of New Zealand during the late 1700s and early 1800s led to cultural clashes As fisheries were common to particular hapu, they came between Maori traditions and those of the colonial under the traditional authority of the rangatira who had settlers. These clashes caused New Zealand to form as a responsibility for sustaining the fisheries resources. The nation with two disparate traditions. In contrast to Maori exercise of rangatiratanga (chieftainship) invoked emphasis on kinship, respect for ancestors, spirituality, prohibitions and enforcements such as tapu (spiritually- and millennial connectedness to the natural world, the based restrictions), thus having the power and influence of Anglo-Commonwealth settlers brought their concepts of the gods. When tapu was placed on a fishery there were modernity, the Westminster governmental system, restrictions and prohibitions to protect or control the fish scientific positivism, capitalism, and Christianity’s stocks. It was understood that exploitative behaviour monotheism (Walker, 1999). Settlers then viewed Maori towards fisheries, such as breaching tapu, was a serious as impediments to progress and the spread of civilisation, offence that could invoke the punishment of the gods. A believing the ‘landscape could be tamed, and the savage less serious offence could result in offenders being domesticated and assimilated’ (Walker, 1999:108). subjected to muru, (plundering of offender’s possessions by whanau or hapu) (Wai-22, 1988). Conflicts arose repeatedly between Pakeha (those of European descent) and Maori over land and sea claims. The early explorers and colonial settlers to Aotearoa Pakeha interactions with Maori resulted in the expressed amazement at Maori fishing standards, their introduction of foreign diseases that devastated the Maori displayed ingenuity and knowledge of the fishing population. The introduction of muskets in the 1820s grounds, as well as the abundance of fish life (Wai-22, intensified warring between some Maori factions, leading 1988). On December 4, 1769, Joseph Banks, on board to further atrocities and devastation of their traditional Cook’s ship Endeavour, wrote: society. By 1835, many Maori desired that the musket wars cease, and they turned to Christian missionaries, … [The Maori] after having a little laugh at which further undermined their traditional society. The our seine, which was a common kings Christian missionaries advised the Maori chiefs to agree seine, shewd us one of theirs which was 5 to signing the Treaty of Waitangi 1840, which marked the fathom deep and its length we could only next stage in the erosion of Maori culture (Walker, 1996). guess, as it was not stretchd out, but it could not from its bulk be less than 4 or 500 At the time the Treaty of 1840 was signed, Maori were by fathoms [700-900 metres]. Fishing seems to no means weak, compliant or submissive. Maori claimed be the chief business of part of the all their lands, not just their settlements and cultivations, countrey; about all their towns are and they were well armed, outnumbering Pakeha by thirty abundance of netts laid upon small heaps to one. They were intent on preserving their autonomy, like hay cocks and thatchd over an almost and clearly retained control of the land and sea. Maori every house you go into has netts in its were hopeful that the Treaty of 1840 would lessen the making (Wai-22, 1988:42). threat of further French settlements and the anarchy that prevailed in New Zealand at the time (Ward and A reported observation, dated December 29, 1814, stated Hayward, 1999). that Maori were well supplied and very industrious with their fishing. It also reported that Maori observed certain

4 IIFET 2000 Proceedings The English-language version of the Treaty of 1840 is disempowerment. The erosion of Maori chiefs’ land base recognised by the Crown as the founding document of disempowered them, forcing over 90 per cent of Maori to New Zealand as a nation. Maori widely accept another subsistence living on remnants of their traditional land version in Maori language, Te Tiriti o Waitangi. Both (Walker, 1999). Thereafter Maori and Pakeha became versions of the Treaty of 1840 have three articles. The binarily opposed to each other ethnically, socially and first article of the English-language version states that culturally, and this historical opposition remains (Walker, Maori ‘cede to Her Majesty the Queen of England 1996). absolutely and without reservation all the rights and powers of Sovereignty …’ The Maori translation of this As is evident, most, if not all, that was guaranteed to article, however, uses the term kawanatanga (the right of Maori by the Treaty of 1840 has been alienated from iwi to self-government in their particular region). This them. Since the signing of the Treaty Maori land holdings difference in translation, with the English version ceding have diminished from around 66 million acres to around 3 sovereignty and the Maori version ceding governance, million acres (Mahuika, 1998). By 1985 only 1800 Maori deceived the Maori signatories, causing the Treaty of worked in the fishing industry; few owned vessels and 1840 to be the first step in the subversion of Maori licences while most worked as labourers (Kelsey, 1990). sovereignty (Walker, 1999).

The English-language version of the second article states 5. FISHERIES MANAGEMENT LEGISLATION that the Queen of England guarantees Maori ‘the full exclusive and undisturbed possession of their Lands and By 1792 there was a thriving sealing industry throughout Estates Forests Fisheries and other properties which they Aotearoa’s waters, and whaling became prosperous by the may collectively and individually possess …’ This early 1800s, attracting whaling ships primarily from guarantee requires Maori to agree to an exclusive pre- Australia, the United Kingdom and the United States. emptive clause that allows the Queen ‘the exclusive right Maori fisheries management practices could not control of Preemption over such lands …’ This clause allows the the exploits of sealers and whalers, thus making the late Crown to purchase Maori land should they be inclined to 1700s until the mid-1800s a period characterised by a dispose of it ‘at such prices as may be agreed upon …’ distinct lack of management of some fish stocks. The second article in the Maori version, however, Subsequently, New Zealand’s fisheries management can guarantees Maori chiefs tino rangatiratanga (unqualified be classified into three distinctly different regimes: from exercise of their chieftainship over their lands, villages, 1866 to 1962 a limited entry system existed consisting of fisheries and all their taonga). The guarantee of tino a range of regulations to limit participation in fisheries; rangatiratanga contradicts the English-language version 1963 to 1982, a regulated open entry system was in place of the first article (Walker, 1999). Maori agreed to the that encouraged greater domestic participation in first article upon the Crown’s conditional promise to fisheries; and, beginning 1983, the QMS was recognise the second article’s guarantee of Maori’s implemented to address overcapitalisation that occurred undisputed rights to their resources, lands, forests, during the previous regime, to rebuild overexploited fisheries, taonga, etc. (Mahuika, 1998). The third article inshore fisheries, and to enhance efficiencies for the in both versions has the Queen of England extend to industry, in part, through the allocation of ITQ. Maori ‘royal protection and imparts to them all the Rights and Privileges of British Subjects’. These three fisheries management regimes have all operated with similar assumptions about Maori and their Soon after the Treaty was signed, the guarantee to Maori involvement in fishing. The first assumption is that Maori that they retain ‘full exclusive and undisturbed possession lacked their own fisheries management systems, hence of their Lands and Estates Forests Fisheries and other there was a need for statutory management. This properties’ was ignored by the colonial government, assumption was perpetuated by the lack of any national which was intent on accommodating the growth in fisheries departments having responsibility for colonial settlements by acquiring Maori land. This was ascertaining the nature and extent of Maori fishing and done primarily by the manipulation of the English- any entitlements they may have had (Wai-22, 1988). The language version’s pre-emptive clause to suit the interests second assumption is that Maori fishing activity should be of the settlers (Sorrenson, 1999). limited to subsistence use. However, this assumption fails to acknowledge well-documented early successes Maori Successive governments asserted the Crown’s sovereignty had in large scale fishing and trade. by the use of military force to subdue and intimidate Maori chiefs; extinguishing native title to land through Only a few exceptions in fisheries legislation recognised unscrupulous purchases and other means through the Maori rights to fisheries resources. For example, the Fish Native Land Court; transmigration of settlers from the Protection Act 1877 Section 8 states ‘nothing in this Act United Kingdom to gain numerical dominance; military … shall be deemed to repeal, alter or affect any provisions invasion; confiscation of land; and political of the Treaty of Waitangi, or take away, annul, or abridge

5 IIFET 2000 Proceedings any of the rights of the aboriginal natives to any fishery 6. MAORI FISHERIES CLAIMS AND secured to them thereunder’. However, the few examples SETTLEMENTS of statutory recognition of Maori fishing rights were not honoured in practice. They were generally held to be The Government’s intent to implement the ITQ system ineffective due to no Maori fisheries having been and resolve Treaty of 1840 grievances placed significant recognised by statute (Quentin-Baxter, 1998). political pressure on the settlement of Maori fishing rights claims. The first Treaty-based claim in response to the Maori have taken a number of cases to New Zealand ITQ system began in June 1985 by a collection of iwi, the Courts over their customary fishing rights, and claims to Muriwhenua, of the far north of the North Island. The lakes, rivers and foreshores. Some of these cases were Muriwhenua claim and subsequent fisheries claims were inclusive of Maori rights to land. Some cases resulted in filed with the Waitangi Tribunal. the Crown promising Maori reserves. Of the few that were granted, most were reduced or taken out of Maori control. The Waitangi Tribunal was established in 1975 with the Some Maori fishing rights claims continued for years and passing of the Treaty of Waitangi Act 1975. The Waitangi eventually ended in Maori accepting what they could Tribunal’s functions are to assess the Crown’s acts or obtain while the Crown usually ceded very little (Wai-22, omissions against the principles of the Treaty of 1840, 1988). For over one hundred years, the New Zealand assess whether inconsistencies in the Crown’s acts or Courts interpreted and implemented fisheries legislation omissions have had a prejudicial effect on Maori, and how in ways that continued to erode Maori fishing rights, a prejudicial effect might be compensated and/or leaving them with limited involvement in the management remedied. It should be noted that there has not been broad of some fisheries, restricting their use to subsistence agreement on what the Treaty of 1840 principles actually purposes or neglecting their claim to having any rights to are beyond the obligation of Treaty partners to act in good fisheries resources. faith, and the Crown to consult with and involve Maori in decision-making under the Treaty’s guarantee of Statutory recognition of Maori fishing rights was restated rangatiratanga (Parliamentary Commissioner for the in the Fisheries Act 1983 Section 88(2) by stating Environment, 1998). ‘nothing in this Act shall affect any Maori fishing rights’. However, the Fisheries Amendment Act 1986, which The Waitangi Tribunal’s report on the Muriwhenua claim brought about the ITQ system, further marginalised Maori concluded that numerous and serious breaches of the in fishing. The 1986 Act makes no reference to the 1983 Treaty of 1840 had occurred, and the effects on the Act Section 88(2) nor any other reference to Maori having Muriwhenua people had been wide-ranging, costing them Treaty-based fishing rights. Furthermore, the 1986 Act income, jobs, trade and opportunities to develop their own allocated ITQ to fishing firms and individuals that met the fisheries. Furthermore, their having to leave their allocation criteria. Part-time fishers, many of whom were traditional area to search for employment had severely Maori, were excluded from the initial allocation. impacted on their traditional ways. Influenced by steps taken in Canada and the United States, the Waitangi The implementation of the ITQ system prompted Maori Tribunal’s report stated that a new agreement between the claims to large areas of fisheries. Many Maori viewed the Crown and the Muriwhenua people was essential, and this ITQ system as a breach of the Treaty of 1840’s second new agreement had to assist the restoration of their tribal article that guaranteed Maori full, exclusive and base and the development of their industrial capability undisturbed possession of their fisheries. The ITQ system (Wai-22, 1988). was viewed by many Maori as severing them from the ocean, raiding their sea resources and selling their right to The Muriwhenua claim and the Waitangi Tribunal’s participate in fisheries while others were allowed access Muriwhenua Fishing Report provided the basis for to their traditional fishing grounds. In so doing, the ITQ injunctions against further ITQ allocations. In September system and its bureaucracy replaced some Maori 1987 the Muriwhenua claimants successfully petitioned traditions, conservation practices and their extensive the High Court for an injunction against futher ITQ knowledge of the sea (Wai-22, 1988). allocations. Maori and the Crown entered into negotiations, interspersed with disputes, on how Maori Beginning in the mid-1980s, Maori began to file Treaty- fisheries might be given effect in light of tino based claims to fisheries resources in response to the rangatiratanga, as outlined in the second article of the implementation of the ITQ system. The basis to Maori Maori-language version, and Maori having full, exclusive claims is that they never relinquished their fishing rights, and undisturbed possession of their fisheries, as outlined and that the Crown breached its Treaty of 1840 in the second article of the English-language version. obligations. While the ITQ system initially prompted indigenous claims to large areas of fisheries, it proved to be an effective means of resolving some claims.

6 IIFET 2000 Proceedings 6.1 Maori Fisheries Act 1989 6.2 The Treaty of Waitangi Settlement Act 1992

During protracted negotiations between Maori and the At the time negotiations took place on the Ngai Tahu Crown, the Crown implemented an interim and without claim, Sealord Products Ltd., New Zealand’s largest prejudice settlement. Although Maori negotiators objected seafood firm, was offered for sale, and this was seen as an to some aspects of this interim settlement, it was passed opportunity to settle Maori fisheries claims. In 1992 the into law as the Maori Fisheries Act 1989. The 1989 Act Deed of Settlement was signed between Maori and the outlined several contributions made by the Crown to Crown as the full and final settlement of all Maori Maori, including the transfer of 10 percent of existing commercial fisheries claims in accordance with the Treaty total allowable commercial catch before 31 October 1992 of 1840. The Treaty of Waitangi Settlement Act 1992 to the new Maori Fisheries Commission. In order to meet gave effect to the 1992 Deed of Settlement and repealed this obligation, the Government actively traded in the the Fisheries Act 1983 Section 88(2). The 1992 Act open market to obtain ITQ. The 1989 Act also included a resulted in the Crown agreeing to provide $150 million $10 million payment made by the Crown to Maori. It is for Maori to enter into a 50/50 joint venture with Brierley important to note that the 1989 Act included provisions Investments Ltd. in the purchase of Sealord Products Ltd., for the Crown to recognise tino rangatiratanga by and 20 percent of all new species brought within the ITQ enhancing Maori involvement in the control and system to be allocated to Maori. The assets allocated to management of fisheries. Maori through the 1992 Act are known as the post- settlement assets. It should be noted that Maori did not The Maori Fisheries Commission was required to unanimously support the 1992 Deed of Settlement, and a administer these settlement assets on behalf of Maori, Court of Appeal injunction against the 1992 Deed was which it did primarily through its commercial enterprise, attempted. Aotearoa Fisheries Ltd., and short-term ITQ lease arrangements. The Maori Fisheries Commission was also Some of the main points of the 1992 Act include: (1) required to facilitate the entry of Maori into the business Maori non-commercial fishing rights remain subject to the and activity of fishing, but it had no power to allocate Fisheries Act 1983, and hence remain in accordance with assets to Maori or develop a means of allocating assets. the Crown’s obligations under the Treaty of 1840; (2) the Maori made it clear, however, that their acceptance of 10 Minister of Fisheries is to consult and develop policies percent of ITQ did not represent the full settlement of with Maori to recognise their use of and management their fisheries claims. The assets provided to Maori by the practices for non-commercial fishing rights; and (3) 1989 Act are known as the pre-settlement assets. regulations are to be developed that recognise and provide for Maori customary food gathering and their special In August 1987 the Ngai Tahu people, who at the time of relationship with places that have customary food the 1840 Treaty had kaitiaki over most of the South gathering importance, such as tauranga ika (fishing Island, filed a fisheries claim against the Crown. Ngai grounds) and mahinga mataitai (sea reserves). Tahu claimed (1) they had the right to full ownership of fisheries out to twelve miles off the coast of their The 1992 Act brought about the reconstitution of the traditional boundaries; (2) as a partner with the Crown in Maori Fisheries Commission as the Treaty of Waitangi the Treaty of 1840 they were prepared to grant fifty Fisheries Commission Te Ohu Kai Moana (TOKM) to percent of ITQ within this twelve mile zone to the Crown; administer both pre and post-settlement assets. TOKM and (3) they were prepared to accept ITQ outside the was empowered to devise, in consultation with Maori, a twelve mile zone as compensation for the Crown’s scheme to distribute the pre-settlement assets, valued in stewardship of fisheries having resulted in serious 1992 at around $130 million, with a current value of depletion of fishstocks within the twelve mile zone (Wai- around $300 million (O’Regan, 1999). Since 1992 TOKM 27, 1992). has held numerous meetings to consult with iwi about the method of allocating pre-settlement assets. The proposed After a series of claim hearings from August 1987 to optimum method of allocation has assets distributed to September 1991, the Waitangi Tribunal concluded that (1) iwi, since tikanga has fisheries rights held collectively. Ngai Tahu had never disposed of their exclusive right to sea fisheries; (2) the Crown had breached its Treaty of It is intended that once the assets are allocated to iwi, they 1840 obligations to Ngai Tahu; (3) Ngai Tahu have an will have full discretion on how to use those assets to exclusive Treaty right to the sea fisheries up to twelve benefit their members. In November 1998 seventy-eight miles from their territorial boundaries; and (4) Ngai Tahu iwi received the TOKM’s Report on the Proposed Method have a Treaty development right to a reasonable share of for Allocation of Pre-Settlement Assets. To date, thirty- the sea fisheries within twelve to two hundred miles (Wai- five iwi have accepted the proposed allocation method 27, 1992). while eighteen have rejected it, and others have expressed conditional acceptance, no response or no decision. There are proposed iwi mandate, representation and structural

7 IIFET 2000 Proceedings requirements to be agreed to before the allocation method An issue of importance concerning customary rights is is implemented (TOKM, 1999). The proposed optimum that the Treaty of Waitangi Settlement Act 1992 does not pre-settlement allocation method is as follows: Inshore state the amount of fish to be taken. The Minister of ITQ, fishstocks caught at depths to 300 metres, will be Fisheries has proposed that allowances for customary take allocated according to iwi coastline adjacent to their rohe be within total allowable catches (TAC) while TOKM has (traditional boundaries). Deepwater ITQ will be allocated recommended allowances be set at 10 to 20 percent of the so that half will use the coastline basis, and the other half TAC for most fishstocks. However, the determination of will use a population basis, according to the 1996 Census customary take remains unresolved (TOKM, 1998). data. The allocation of deepwater ITQ takes into account the Waitangi Tribunal’s findings that Maori have a right Currently, there is a claim before the New Zealand Courts to share in the development of deepwater fisheries that has significant legal implications for Maori and all (TOKM, 1999). New Zealanders. This claim was filed by Te Tau Ihu o te Waka a Maui for customary title to the foreshore (land It is intended that other pre-settlement assets, such as below mean high tide) and seabed of the Marlborough shares in TOKM and cash holdings, will be allocated to Sounds, at the top of the South Island. The Te Tau Ihu o iwi according to the volume of ITQ allocated to them and te Waka a Maui claim is currently before the Maori the iwi population basis, respectively (TOKM, 1999). It is Appellate Court after an interim decision was made by the expected that after the pre-settlement assets have been Maori Land Court. The interim decision states that Maori distributed to iwi, a new Maori Fisheries Act will set out a customary title to the foreshore and seabed may still exist, scheme for distributing the post-settlement assets. pending certain conditions. The Maori Appellate Court is now considering evidence to determine whether the deeds of land sales in the area included the foreshore and 6.3 Outstanding Maori Fisheries Claims whether any legislation relates to the foreshore and seabed and may have extinguished any pre-existing customary As mentioned, the 1992 Act stated that Maori customary title Maori had prior to 1840. Te Tau Ihu o te Waka a fishing rights remain and new fisheries regulations are to Maui’s claim has significance for two reasons. First, the recognise and provide for Maori customary food Marlborough Sounds area is used extensively by gathering and their special relationship with such places. recreationalists and marine farmers, primarily for the In addition, the Fisheries Act 1996 included provisions for growing of Greenshell¥ mussels. Recently, there has the recognition of taiapure (local fishery areas). It is been a flurry of marine farm applications, which are now expected that the development of these places will being reviewed by various local councils (Bess and Harte, encourage more Maori to be involved in fisheries (Te in press). Second, in the event the claim is successful, it Puni Kokiri, 1993). Despite the government’s inaction on could set a precedent for other iwi to raise similar claims this matter, to date several mataitai and taiapure have throughout New Zealand. been established. The current management of mataitai and taiapure raises some difficulties for local Maori authorities in expressing their traditional management 7. CONCLUSIONS AND RECOMMENDATIONS practices. These difficulties demonstrate that the expression of rangatiratanga has been narrowly Prior to the arrival of Pakeha, Maori had a centuries-old prescribed, perpetuating Maori’s distrust of legislation for relationship with the natural world, and their relationship the protection of their customary rights (Ririnui and with the sea permeated their way of seeing the world. Memon, 1997). Until the mid-1800s, Maori society remained strong and vibrant, and the practice of tikanga and kaitiaki ensured In 1997, after a five year process of drafting national fisheries remained sustainable. After the arrival of regulations for customary fishing rights, Ngai Tahu joined colonial settlers, the Treaty of 1840 was viewed as with Te Tau Ihu o te Waka a Maui, a confederation of desirable for Maori-Pakeha relations. The Treaty was a eight iwi from the top of the South Island, to determine relatively enlightened ‘blueprint’ that provided Maori the South Island Customary Fishing Regulations. This with protection of their resources in exchange for the joint effort includes five regional co-ordinators who work Crown having authority over New Zealand (Fleras and closely with the Ministry of Fisheries and honorary Spoonley, 1999). However, in practice, the Treaty of 1840 fisheries officers. The co-ordinators also work with those paved the way for British imperialism and sovereignty nominated by tangata whenua to specify conditions for (Walker, 1999). The suppression of Maori culture and customary take, ensure iwi have reliable databases, assist language, and their assimilation into Pakeha culture, led to with establishing mataitai and rahui (temporary closures). numerous Maori losing the capacity to speak or think in Most other iwi continue their unresolved discussions on Maori terms (Fleras and Spoonley, 1999). The customary rights and regulations directly with the inappropriateness of some New Zealand institutions and Ministry of Fisheries (TOKM, 1997). Pakeha involvement in issues critical to Maori have

8 IIFET 2000 Proceedings worked to break down traditional Maori society. This has indigenous cultures and societies. The New Zealand made it almost impossible for Maori to maintain tribal Government still has before it the challenge of responsibility for their own people and for society at large conceptualising the Maori world view and implementing to appreciate Maori having the right to maintain their own its concepts into government policies and institutions. way of life (Ministerial Advisory Committee, 1988). ‘Without such a conceptualisation and without an open agreement on the goal, it is difficult to imagine indigenous The settlement of some Maori Treaty-based claims has organisations and governments creating lasting solutions’ brought about the reclamation of much of their traditional (Coates, 1998:88). The process of addressing all issues land and fisheries resources. Now, Maori-owned ITQ surrounding Maori customary rights will require Pakeha totals 224,000 tonnes, approximately one-third of the total and government institutions to see through different ITQ (O’Regan, 1999). The combined pre- and post- lenses and to reassess their assumptions about institutions settlement assets from the Maori Fisheries Act 1989 and and frameworks to a much greater extent than was the Settlement Act 1992 ensure that Maori will continue required of them when addressing Maori commercial to have a major influence in the development of the fishing rights, which fit conveniently within the newly commercial fishing industry. However, many iwi find it formed government-supported ITQ system. difficult to incorporate their traditional fisheries practices within the confines of the ITQ system and its bureaucracy. If, in the near future, New Zealand’s non-indigenous people do not confirm their commitment to the survival of Now that Maori commercial fisheries claims have been Maori culture and society, then Maori’s population settled, the greater challenge for New Zealand is defining growth rate and their enhanced political and economic Maori customary rights and determining fishery strength will, in time, move society’s response in their regulations that secure these rights. Similar to Treaty- favour. If non-indigenous people’s affirmative response based rights, customary rights hinge on tino comes sooner than later, there is the prospect of moving rangatiratanga and the concept of mana. According to closer to Coates’ advice to (1) focus on understanding Walker (1999), Maori mana and tino rangatiratanga may New Zealand’s pattern of racial interaction; (2) commit to coexist with that of the Crown, provided there are discrete support for Maori language and culture; (3) agree on a institutional frameworks that recognise and respect the collective development strategy that matches Maori legitimacy of this arrangement. This is what Maori aspirations with government programmes and private believed they were guaranteed when signing the Treaty of sector activities; and (4) create living treaties, not once- 1840. However, New Zealand has been particularly averse and-for-all-time agreements that provide little flexibility to discussing the notion of sovereignty, perhaps due to for the future. There will then remain the prospect that the having little experience with federalist notions of dividing disparate cultures and traditions in Aotearoa New Zealand sovereignty (Palmer, 1998). will become he iwi kotahi tatau (one people) as many Maori first hoped when they signed the Treaty of 1840. Coates (1998) reminds us that the recognition of indigenous peoples’ rights should remain culturally 8. ACKNOWLEDGEMENTS focused, not legalistic, and that all members of a society, including government insitutions, have the responsibility I wish to thank Trevor Wilson, Te Tari Maori, Nelson to be involved in progressing relationships based on trust Polytechnic, Phillip Grimshaw, Ngai Tahu Development and confidence. Maori customary rights are first and Corporation, Professor Nick van der Walt, Massey foremost about the expression of Maori culture through University, and Cornelia Bess. tino rangatiratanga. However, the concept of Maori fisheries without pecuniary gain is foreign to the Crown. 9. REFERENCES In addition, the concepts of tikanga and kaitiaki connote a sense of co-operation, trust, spiritual-connectedness and Anaya, S.J., Indigenous Peoples in International Law, sustainability of the ecosystem. Since the mid-1980s the New York: Oxford Univ. Press, 1996. Crown has focused on entirely different concepts as it has steadfastly reformed both public and private sectors with Bess, R. and M. Harte, The role of property rights in the strong emphasis placed on competition, individualism and development of New Zealand’s seafood industry, other market-driven forces. Marine Policy, in press.

Like the settlement of Maori commercial fisheries claims, Brailsford, B., Song of Waitaha: The Histories of a many legal and political arrangements have been made Nation, Christchurch: Ngatapuwae Trust, 1989. over the last few decades that provided quick solutions to the worsening of conditions for indigenous peoples. Coates, K.S., International Perspectives on Relations with According to Coates (1998), the fundamental challenge Indigenous Peoples, in Living Relationships: The now facing governments and non-indigenous peoples is Treaty of Waitangi in the New Millennium, whether they are committed to the sustainability of Wellington: Victoria Univ. Press, 19-103, 1998.

9 IIFET 2000 Proceedings Fleras, A. and P. Spoonley, Recalling Aotearoa: Parliamentary Commission for the Environment, Indigenous Politics and Ethnic Relations in New June 1998. Zealand, Auckland: Oxford Univ. Press, 1999. Quentin-Baxter, A., The International and Constitutional Havemann, P., Introduction in Indigenous Peoples’ Rights Law Contexts, in Recognising the Rights of In Australia, Canada and New Zealand, P. Indigenous Peoples, A. Quentin-Baxter, ed. Havemann, ed. Auckland: Oxford Univ. Press, Institute of Policy Studies, Victoria University of 1-12, 1999. Wellington, 22-53, 1998.

Holdaway, R. and C. Jacomb, Rapid extinction of the Ririnui, T. and A. Memon, Recognition of Maori moas, Science, 28, 2250, 2000. Customary Fisheries in New Zealand’s Fisheries Management Regime, revised paper presented at Halbert, R.W., Horouta: The History of the Horouta the Regional and Urban Development Conference, Canoe, Gisborne and East Coast, Auckland: Reeds Wellington, 10 December 1997. Publishing, 1999. Sorrenson, M.P.K., The Settlement of New Zealand from Kelsey, J., A Question of Honour? Labour and the Treaty 1835, in Indigenous Peoples’ Rights In Australia, 1984-1989, Wellington: Allen & Unwin, 1990. Canada and New Zealand, P. Havemann, ed. Auckland: Oxford Univ. Press, 162-179, 1999. Kingsbury, B., The Treaty of Waitangi: Some International Law Aspects, in Waitangi: Maori & Te Puni Kokiri, Nga Kai o te Moana: Customary Pakeha Perspectives of the Treaty of Waitangi, Fisheries, Philosophy and Practices, Legislation I.H. Kawharu, ed. Auckland: Oxford Univ. Press, and Change, Wellington: Ministry of Maori 121-157, 1989. Development Te Puni Kokiri, 1993.

Mahuika, A., Whakapapa is the Heart, commentary in TOKM, Tangaroa: The Newsletter of the Treaty of Living Relationships: The Treaty of Waitangi in Waitangi Fisheries Commission, Wellington: the New Millennium, 214-221, Wellington: Treaty of Waitangi Fisheries Commission Te Ohu Victoria Univ. Press, 1998. Kai Moana, 39, October 1997.

Ministerial Advisory Committee, Puao-Te-Ata-Tu (Day ,Tangaroa: The Newsletter of the Treaty of Break): Ministerial Advisory Committee on a Waitangi Fisheries Commission, 45, October 1998. Maori Perspective for the Department of Social Welfare, Wellington: Department of Social ,Full Particulars of the Optimum Method for Welfare, September 1988. Allocation to be Included in the Report to the Minister, 10 March 1999. O’Regan, Sir T., Speech Notes for the Maori Commercial Fisheries Conference, Auckland: Heritage Hotel, Wai-22, Report of the Waitangi Tribunal on the 11 May 1999. Muriwhenua Fishing Claim, Wellington: Waitangi Tribunal, Department of Justice, 1988. Orbell, M., The Illustrated Encyclopedia of Maori Myth and Legend, Christchurch: Canterbury Univ. Press, Wai-27, The Ngai Tahu Sea Fisheries Report 1992. 1995. Wellington: Brooker and Friend, Wellington, 1992.

Palmer, M., The International Practice, in Recognising the Walker, R., Ranginui Walker Nga Pepa a Ranginui: The Rights of Indigenous Peoples, A. Quentin-Baxter, Walker Papers, Australia: Penguin Books, 1996. ed. Institute of Policy Studies, Victoria University of Wellington, 87-103, 1998. , Maori Sovereignty, Colonial and Post-colonial Discourses, in Indigenous Peoples’ Rights In Pálsson, G., The implications of the ITQs: Theory and Australia, Canada and New Zealand, P. context, Proceedings of the FishRights99 Havemann, ed. Auckland: Oxford Univ. Press, Conference, Fremantle, Australia, November 1999. 108-122, 1999.

Parliamentary Commissioner for the Environment, Ward, A. and J. Hayward, Tino Rangatiratanga: Maori in Kaitiakitanga and Local Government: Tangata the Political and Administrative System, in Whenua Participation in Environmental Indigenous Peoples’ Rights In Australia, Canada Management, Wellington: Office of the and New Zealand, P. Havemann, ed. Auckland: Oxford Univ. Press, 378-399, 1999.

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